England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
MR RECORDER PARRINGTON
8SE13990

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/06/2011

LORD JUSTICE WARD:

1. This is a sorry tale about the seizure of the appellant's motor car by a police officer of the Greater Manchester Police Force purporting to act under section 165A of the Road Traffic Act 1988 as amended.

The unfortunate concatenation of events

2. Mr David Pryor, the appellant, purchased a Honda Prelude motor car, registration number L664 UMB, on 4th July 2008. He had to wait for the Driver and Vehicle Licensing Agency (DVLA) to issue a new registration certificate (formerly known as the log book, and now the "V5C") recording the fact that he was the new keeper of the Honda motor car. This can take time. Whilst he was abroad, he lent the Honda to his friend, Mr Tony Burton, and gave Mr Burton a document in these terms:

"12th July 2008

To Whom It May Concern.

I am the registered owner of the above vehicle.

I have this day loaned my vehicle to Tony Burton who has my full permission to drive the vehicle and I have inspected his Saga Motor Insurance Policy which covers him third party to drive my vehicle.

David A. Pryor"

3. On 28th July Mr Burton was driving the Honda motor car in Manchester when he was stopped by PC Lydon and PC Saunderson, officers in uniform, because he was holding a mobile telephone in his right hand against his right ear as he turned right from King Street into Cross Street. He was issued with a fixed penalty notice for that offence. The officers perfectly properly requested Mr Burton to produce his driving licence, an MOT certificate and an insurance certificate. He duly produced his full UK photo driving licence which confirmed his identity. While all this was going on, enquiries were made by the police officer to ascertain the ownership of the Honda but the information coming from the Police National Computer was that there was no current keeper and no insurance was shown for the vehicle. This was explained to Mr Burton who then produced an insurance certificate from Saga Insurance Company and the letter from Mr Pryor giving his consent to his driving the vehicle. The certificate of motor insurance was issued by Saga whose name is upon it. It shows the policy holder to be Mr Burton and the period of cover to be from February 2008 to January 2009. The vehicle insured was Mr Burton's Ford Focus registration number T867 SGR. The certificate then sets out details of "Persons or classes of persons entitled to drive". That reads as follows:

"Provided the person driving holds a licence to drive the vehicle or has held and is not disqualified from holding or obtaining such a licence.

Policyholder Only

The policyholder may also drive with the consent of the owner of a motor car not owned by and not hired under a hire purchase or self-drive agreement to the policyholder. …"

It has a declaration signed by the Group Chief Executive of Saga Insurance Company Limited certifying that the policy to which the certificate related satisfied the relevant law applicable in Great Britain. On the sideline of the certificate the policy holder is informed:

"Your certificate gives evidence that you have insurance to comply with the law."

4. This did not satisfy the police officers. Rightly or wrongly their suspicions were aroused. They made further enquiries by telephone of Saga Insurance speaking to a customer services representative who informed the police officer that Mr Burton was only insured to drive other vehicles on his policy under a third party clause if the other vehicle being driven had its own insurance cover. According to the police computer there was no such cover. Thus the officers decided to seize the Honda motor car under section 165A of the Road Traffic Act for having no insurance. Understandably enough, Mr Burton was not best pleased and according to the police officers he "walked off shouting obscenities and refusing to hand over the keys or wait for the relevant paperwork and shouted, "I'll sue you"."
5. Mr Pryor, as the owner, was the one to bring the claim and he did so seeking damages for wrongful interference with goods. His claim was dismissed on 24th August 2009 by District Judge Fairclough on a trial of the action as a small claim in the Manchester County Court. Mr Pryor's appeal to Mr Recorder Parrington was dismissed but Rix L.J. gave permission for this second appeal.

The statutory background

6. Part VI of the Road Traffic Act 1988 deals with third party liabilities and the need for compulsory insurance against third party risks. Section 143 provides as follows:

"143 Users of motor vehicles to be insured or secured against third party risks.

(1) Subject to the provisions of this Part of this Act—

(a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

(b) …

(2) If a person acts in contravention of subsection (1) above he is guilty of an offence."

7. Section 147 deals with the issue of certificates of insurance and provides:

"147 (1) A policy of insurance shall be of no effect for the purposes of this Part of this Act unless and until there is delivered by the insurer to the person by whom the policy is effected a certificate (in this Part of this Act referred to as a "certificate of insurance") in the prescribed form and containing such particulars of any conditions subject to which the policy is issued and of any other matters as may be prescribed."

The relevant regulations were promulgated by the Motor Vehicles (Third Party Risks) Regulations 1972. Regulation 5 dealing with the issue of certificates provides:

"5(1)  A company shall issue to every holder of a security or of a policy other than a covering note issued by the company:—

(a) in the case of a policy or security relating to one or more specified vehicles a certificate of insurance in Form A or a certificate of security in Form D in respect of each such vehicle;

(b) …

(2)  Notwithstanding the foregoing provisions of this Regulation, where as respects third party risks a policy or security relating to a specified vehicle extends also to the driving by the holder of other motor vehicles, not being specified vehicles, the certificate may be in Form A or Form D, as the case may be, containing a statement in either case that the policy or security extends to such driving of other motor vehicles. …"

It is common ground that the Saga certificate produced by Mr Burton is in Form A and is a valid certificate of insurance.

8. Part VII of the Act has miscellaneous and general provisions. They include the following:

"165 Power of constables to obtain names and addresses of drivers and others, and to require production of evidence of insurance or security and test certificates

(1) Any of the following persons—

(a) a person driving a motor vehicle (other than an invalid carriage) on a road, or

…

(b) …

must, on being so required by a constable or vehicle examiner, give his name and address and the name and address of the owner of the vehicle and produce the following documents for examination.

(2) Those documents are—

(a) the relevant certificate of insurance or certificate of security (within the meaning of Part VI of this Act), or such other evidence that the vehicle is not or was not being driven in contravention of section 143 of this Act as may be prescribed by regulations made by the Secretary of State,

…

(3) Subject to subsection (4) below, a person who fails to comply with a requirement under subsection (1) above is guilty of an offence.

165A Power to seize vehicles driven without licence or insurance

(1) Subsection (5) applies if any of the following conditions is satisfied.

…

(3) The second condition is that—

(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143,

(b) the person fails to produce such evidence, and

(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.

…

(5) Where this subsection applies, the constable may—

(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;

…

(6) Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it—

(a) …

(b) in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section.

But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so.

…

(9) In this section—

(a) …

(b) a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a);

(c) … "

The judgment below

9. For the District Judge the question was whether the certificate of insurance that Mr Burton produced was the relevant certificate of insurance and he concluded it was not because the objective of section 165A seemed to him to allow the police to determine whether the vehicle which is being used at a particular time on the road is insured for that driver. "The missing link" for him was that because Mr Pryor's name had not come up on the police computer they were prompted to ring Saga who gave wrong information.

"Having been given that wrong information in the absence of confirmation from DVLA that Mr Pryor was the registered owner then I do not consider that the police acted unreasonably, I think they did have reasonable grounds for believing that the vehicle was being driven without insurance."

10. Mr Recorder Parrington approached the case on the basis that the issue was whether the police officer had reasonable grounds for believing that Mr Burton was driving without insurance prior to taking the step of seizing the vehicle. He considered that the relevant certificate of insurance was one relating to the Honda motor car not the Ford Focus. Although all agreed that Mr Burton was driving with consent and with insurance cover those were not the issues. The agreed issue in the case as it seems to have been presented to him was whether the police officer had reasonable grounds for believing the vehicle was not being driven by Mr Burton at that time in a manner complying with section 143 of the Act. The information from Saga that Mr Burton's certificate did not cover his driving Mr Pryor's car gave the constable reasonable ground for believing that the vehicle was being driven in contravention of section 143.

Discussion

11. Mr Pryor was unable to attend before us though Mr Burton did make the journey down from Manchester to appear as his Mackenzie friend if needed. In the event he was not called upon. Miss Francesca Whitelaw now appears for the Chief Constable, not having appeared below. I commend her for her spirited defence of the Chief Constable. The exchanges between Bench and Bar must have seemed to her more like an intense cross-examination than a Socratic development of ideas. She resisted with commendable charm and good humour. As she reads this judgment she will be expecting to see the doom-laden words, "Despite the persuasive submissions of Miss Whitelaw, this appeal must be allowed". So it must. I am totally satisfied that the appeal must be allowed for these reasons.
12. To justify seizure each of the three facts set out in section 165A(3) must be present:

(1) A constable in uniform must require under section 165 that the driver produce evidence that the vehicle was not being driven in contravention of section 143. By virtue of 165A(9) the reference to that evidence is a reference to a document within section 165(2)(a), namely, "the relevant certificate of insurance". In summary the police constable must require the driver to produce the relevant certificate of insurance.

(2) The driver must fail to produce the relevant certificate.

(3) It is only then that the third element arises – the constable's reasonable grounds for believing that the vehicle was being driven in contravention of section 143. The Recorder, perhaps misled by the way the case was argued before him, fell into error in that, having found that Mr Burton was driving with consent and with insurance cover, he nevertheless rested his judgment on whether the police officers had reasonable grounds for believing that the vehicle was being driven without there being in force in relation to the use of the vehicle by the driver such a policy of insurance in respect of third party risks as complies with Part VI of the Act.

13. The first fact is established. A police officer did call for the certificate of insurance. Miss Whitelaw submits that Mr Burton failed to produce "the relevant certificate". Her case is that the relevant certificate must be a certificate making specific reference to the car being driven, i.e. Mr Pryor's Honda. To show that Mr Burton was insured to drive the Honda, he must show that Mr Pryor had insurance covering that vehicle.
14. That is simply wrong. The purpose of the Act is plain. Users of motor vehicles must be insured against third party risks: section 143. So there must be in force in relation to the use of the vehicle such a policy in respect of third party risks as complies with Part VI. Otherwise the user is guilty of an offence. Mr Burton was the user of Mr Pryor's car. Mr Pryor consented to that use. In relation to that use, being the use of a vehicle other than his own, he was covered because his policy extended to his driving with the consent of the owner a car not owned by him: see the certificate of insurance which says exactly that. On the admitted facts Mr Burton is plainly not guilty of any offence under section 143(2).
15. The police have powers to call on a driver to produce the relevant certificate of insurance for examination: section 165(1) and (2)(a). The certificate must be relevant to the question whether the vehicle was being driven in contravention of section 143. Since the certificate he produced demonstrated he was not guilty of any such contravention, it was plainly a relevant certificate. He was not guilty of any offence under section 165(3).
16. For section 165A purposes Mr Burton had to produce "evidence" that the vehicle was not being driven in contravention of section 143 and as those words were defined in section 165A(9)(b), he had to produce the "document" within section 165(2)(a) namely, "the relevant certificate of insurance" which was evidence that he was not contravening section 143. I ask rhetorically: what other certificate of insurance could he produce other than the certificate issued by his insurers which did cover this use of that vehicle? The Saga certificate showed he was not guilty of an offence under section 143. It showed clearly on its face that he was covered provided he was driving with Mr Pryor's consent and that consent was demonstrated by the testimonial written by Mr Pryor. That letter showed clearly on its face that he was using the Honda with its owner's consent. He produced all the evidence to show that the motor vehicle was not being driven in contravention of section 143. The purpose of section 165A is to give the police the power to remove from the road vehicles which are being used without third party insurance being in place to cover that use. Here that cover was in place.
17. Thus condition 165A(3)(b) was not satisfied. He did not fail to produce what was required. The police constables' belief, misled as they may have been by some person within Saga that the cover was only extended if the car actually being driven was itself insured by its owner, was flatly contradicted by the plain words of the certificate: the police constable's belief, no doubt honestly held, that the certificate did not mean what it said is neither here nor there. Having failed to satisfy condition (3)(b) of section 165A, we simply do not get to section 165A(c) as Miss Whitelaw concedes.
18. It all seems to me as plain as a pikestaff. The police have failed to establish grounds for their seizure of the Honda. The defendant has in those circumstances wrongly interfered with the claimant's goods. The appeal must be allowed and judgment entered for the claimant with damages to be assessed.

Lord Justice Stanley Burnton:

19. Lord Justice Ward has set out the facts and it is unnecessary to repeat them.
20. The appeal depends on the meaning of the words "the relevant certificate of insurance" in section 165(2)(a) of the Road Traffic Act 1988.
21. I approach the construction of Part VI of the Act on the basis that it is notorious that many drivers in fact drive motor vehicles without the insurance that is made compulsory by the provisions of that Part. It is also notorious that a disproportionate number of accidents, injuries and deaths on the road are caused by uninsured drivers. Those who drive uninsured commit a criminal offence and impose the costs of the damage, injuries and deaths that they cause on to insurers through the mechanism of the Motor Insurance Bureau, and it is then passed on to law-abiding insureds.
22. In these circumstances, it would be entirely reasonable for Parliament to authorise police officers to seize a motor vehicle if they believe, on reasonable grounds, that it is being driven uninsured. It would be regrettable if the police had no power to prevent a vehicle that they believe, on reasonable grounds, to be driven uninsured, to be driven away when in fact it may be uninsured. The justification for such a power is all the greater now that the police have access to a database with the information that a vehicle is or is not insured by its owner or keeper.
23. These considerations would lead me to construe, if I could properly do so, "the relevant certificate of insurance" in section 165(2)(a) as meaning a certificate that identifies the vehicle being driven. The production of such a certificate, unless it is a forgery, and provided the driver was named on the certificate, or that the certificate was for any driver with the consent of the policy holder, would preclude lawful seizure under section 165. However, if the certificate produced did not of itself confirm that the driver was insured for the vehicle in question, the police officer could then consider whether he had reasonable grounds to believe, and did believe, that it was being driven uninsured. Only if he did so could he seize the vehicle. This would mean that if a driver simply produces a certificate of the kind produced by Mr Burton, but without any evidence that he is authorised by the owner to drive the car, he would have to explain the position.
24. However, the legislation precludes this, to my mind sensible, result. The Secretary of State has not made any regulations under section 165(2)(a) prescribing the evidence other than "the relevant certificate of insurance or certificate of security" that may be demanded by a police officer, so we are concerned only with that phrase. If Mr Burton's certificate was not "the relevant certificate", he failed to produce "the relevant certificate of insurance" to the police officer when he was stopped. Section 165(3) provides that he committed an offence, but subject to subsection (4). That subsection provides:

"(4) A person shall not be convicted of an offence under subsection (3) above by reason only of failure to produce any certificate or other evidence . . . if in proceedings against him for the offence he shows that—

(a) within seven days after the date on which the production of the certificate or other evidence was required it was produced at a police station that was specified by him at the time when its production was required, or

(b) it was produced there as soon as was reasonably practicable, or

(c) it was not reasonably practicable for it to be produced there before the day on which the proceedings were commenced,

…"

25. If Mr Burton's certificate was not "the relevant certificate of insurance", producing it at the police station would not cure his failure to produce the relevant certificate at the road side. The reference in subsection (4)(a) to "other evidence" is to the other evidence referred to in subsection (2)(a), and as I have stated above, there is no such other evidence. Thus, on the respondent's case, Mr Burton, although insured, could have had no defence to a charge under section 165(3). That is an unacceptable conclusion that Parliament could not have intended.
26. It follows that "the relevant certificate of insurance" bears what I accept is the most obvious meaning, namely the certificate of insurance covering the driving of the motor vehicle in question when the police officer requires its production. This means that if a police officer believes, even on reasonable grounds, that a certificate such as that produced by Mr Burton does not cover the driver (as where a doubtful explanation is given as to his authorisation by the owner), the police officer is at risk if he then seizes the vehicle. If it turns out that the driver was uninsured, the certificate was not "the relevant certificate of insurance", and the seizure was justified. If, however, as here, it turns out that the driver was in fact insured under the policy under which the insurance certificate was issued, then the seizure of the vehicle was unauthorised and gives rise to liability for damages in tort.
27. For these reasons, as well as those given by Lord Justice Ward, I reluctantly agree that this appeal must be allowed.

Lady Justice Black:

28. I agree with both judgments.